Migration Legislation Amendment Bill (No. 5) 2001

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The Privacy Amendment (Private Sector) Act
2000 sought to establish a national privacy scheme for the
private sector in Australia.(1) An act by a private
sector 'organisation' will breach privacy if it breaches an
approved privacy code that is binding on the organisation or, if
the organisation is not bound by a code, a National Privacy
Principle (NPP). NPP 2 relates to the use and disclosure of
personal information. Generally, information may only be used or
disclosed in accordance with the primary purpose for which it was
collected. However, use and disclosure is permissible for a
secondary purpose including:

where the secondary purpose is related to the primary purpose
and the individual would reasonably expect it to be used for that
secondary purpose(2)

where the individual has expressly or implicitly consented to
the use or disclosure(3)

where the use or disclosure is required or authorised
by or under law, and(4)

where the organisation reasonably believes the use or
disclosure is reasonably necessary for a range of activities
carried out by an enforcement body.(5)

The Migration Legislation Amendment Bill (No. 5)
2001 seeks to authorise the disclosure of information relating to
travel to and from the 'migration zone' for migration control
purposes by certain private organisations that provide travel
related services.

Proposed section448B provides that certain private sector
organisations may disclose travel information to an
'officer' under the Act 'for any purpose that is likely to
facilitate the administration or enforcement' of the Act or
Regulations. The information covered by this provision is
'any information relating to travel that has been, is
being or is proposed to be undertaken ... on the way ... to ... or
... that involves the departure from the migration zone'. The
organisations encompassed are airline operators, shipping
operators, travel agents and 'prescribed organisations'. The
provision does not require persons to provide information. Nor does
it detract from other disclosure obligations under the Act.

An 'officer' includes:

an authorised officer of the Department of Immigration and
Multicultural Affairs

Clearly the expression 'likely to facilitate the
administration or enforcement of [the Act]' is designed to limit
the disclosure of personal information by private sector
organisations. Moreover, it is designed to ensure that officers
other than 'authorised officers' only receive travel information
for the purposes of their role under the Migration Act
1958.

However the nature and presence of the
limitation raises two issues:

It is unclear whether the limitation imposes any restrictions
on the officers. While officers may only receive travel information
for the purposes of their role under the Migration Act
1958 it is unclear whether they may use information for
other purposes.

It is unclear whether the limitation imposes a burden on
private organisations. The expression has been used in other
legislation in provisions relating to the transfer of information
between government agencies,(7) issue of ministerial
directions to a government agency,(8) and measures to
assist negotiations between parties.(9) All of these
provisions are addressed to government agencies. Clearly, the
intention is to place a limitation on the disclosure of personal
information by private sector organisations. However, while it may
be reasonable to expect a government agency to form an opinion
about what information is 'likely to facilitate the administration'
of legislation, it may be unreasonable to expect a private
organisation to do the same, particularly when an error in
judgement could constitute a breach of the Privacy Act
1988.

Significantly, information may be disclosed
regarding travel on the way directly or indirectly to the
migration zone. Thus, information may be disclosed relating to
travel to and from destinations prior to the migration zone or
previous legs of a person's travel.

Nathan Hancock
18 September 2001
Bills Digest Service
Information and Research Services

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